US Regulatory Activity | Blockchain and Cryptocurrency

Emily has been involved in the blockchain space for the last several years.  She has spent months in Washington, D.C. meeting with Congress, regulators, and many of the key people in this space.  In an effort to compile information for the C-Suite, she has put together a compilation of information related to the US regulatory space.  Click here to read the list with links of what has gone on in Washington regarding blockchain and crypto.

US Government, Congressional and State Regulations Blockchain and Cryptocurrencies

Guidelines for Blockchain technology

Blockchain as a technology is not regulated. Congress is following it closely and took an advisory stance in its 2018 Joint Economic Report, released in March of 2018. It encourages innovation led with technology whilst issuing a warning on the challenges that will arise from it, most notably on the aforementioned regulatory front:

“The technology may develop to help secure transactions and information transmissions. The technology has many possible applications in addition to managing digital currencies, for which it is most widely known. Blockchain technology has the potential to help the economy function more efficiently and securely. However, the new technology and the possibilities it creates— including structural changes to and extensions of markets— 20 present regulatory and legislative challenges for the Federal Government, including disparate treatment by the States. It is important to proceed with prudence and provide proper guidance to the market […] The new technology also may be attractive for Government to use, improving efficiency in its own operations” 2018 Joint Economic Report

Today, federal and state government regulations are slowly developing and are subject to further changes as the terrain of cryptocurrency use and blockchain technology evolve in the US. The following is an overview of the US government organizations and their respective roles in creating a framework of regulations and guidelines including historic highlights.

US Government Regulatory Agencies:

SEC

The Securities Exchange Commission is the most vocal regulator on cryptocurrency issues and currently qualifies most ICO tokens as securities. In it’s DAO Investigative report, issued in July 2017, the SEC determined that “offers and sales of digital assets by ‘virtual’ organizations are subject to the requirements of the federal securities laws.” In August 2017, the SEC issued a warning about public companies making ICO-related claims.

In December 2017, the chairman of the SEC issued an important statement on ICO’s.  A key element was this warning to advisors of ICO’s:

“On this and other points where the application of expertise and judgment is expected, I believe that gatekeepers and others, including securities lawyers, accountants and consultants, need to focus on their responsibilities.  I urge you to be guided by the principal motivation for our registration, offering process and disclosure requirements:  investor protection and, in particular, the protection of our Main Street investors.”

The Distributed Autonomous Organisation (DAO) structure of cryptocurrency projects, whereby the protocols and algorithms are built to run independently and self-sufficiently of human intervention, has been described as a “crowdfunding contract.” The DAO, not being a SEC registered broker-dealer or funding portal, does not qualify for the Regulation Crowdfunding Exemption, thereby classifying as an investment contract under the application of the Howey test.

Passive awareness campaigns have also been orchestrated by the SEC marked by the launch of a mock ICO website for ‘Howey Coins’ launched by the SEC in April 2018.

With respect to securities laws, however, Chairman Clayton expressed his vision to bring “transparency and integrity to these [new cryptocurrency] markets” with Chris Giancarlo of CFTC in a co-written WSJ op-ed in February 2018. Furthermore, Chairman Clayton and Division Director Hinman of the corporate finance division have since asserted the securities law aren’t a blanket regulation for all cryptocurrencies as it was stated in June 2018 that Ether (ETH), “in its present state,” and Bitcoin (BTC) are not securities.

To support the coordination of efforts across all SEC divisions and offices regarding the application of US securities laws to emerging digital asset technologies and innovations, including Initial Coin Offerings and cryptocurrencies, the SEC appointed Valerie Szczepanik in June 2018. She has been named associate director of the Division of Corporation Finance and senior advisor for Digital Assets and Innovation for Division Director Bill Hinman. Director Hinman has spoken publicly on whether Bitcoin or Ether are securities.

In November 2018 the Securities and Exchange Commission announced settling charges against two companies that sold digital tokens during initial coin offerings (ICOs).  These were their first cases imposing civil penalties solely for ICO securities offering registration violations.  Both companies agreed to return funds to investors, register the tokens as securities, file periodic reports with the Commission, and pay penalties.

Also in November, the SEC issued a statement on current regulations on securities, broker-dealers, and exchanges for cryptocurrency tokens.  It is one of their clearest statements to date that gives examples of situations where the current laws apply.

In late November 2018, the SEC announced a settlement with two celebrities who did not acknowledge payments for promoting specific ICOs.

SEC Commissioner Jay Clayton gave additional clarification on ETFs to the NY Consensus event in November 2018.

On April 3, 2019, the SEC offered this guide as a tool in assessing digital assets:

“As part of a continuing effort to assist those seeking to comply with the U.S. federal securities laws, FinHub is publishing a framework for analyzing whether a digital asset is offered and sold as an investment contract, and, therefore, is a security.  The framework is not intended to be an exhaustive overview of the law, but rather, an analytical tool to help market participants assess whether the federal securities laws apply to the offer, sale, or resale of a particular digital asset.”

The SEC continues to investigate stock sales of cryptocurrency companies that may not be in compliance with current regulations. On May 2nd, 2019, in New York, the SEC obtained a preliminary injunction, continuing the freeze of $27 Million in stock sales of a cryptocurrency company.

On May 9th, 2019, Commissioner Hester Peirce, offered an updated report on best practices for potential token offerings, jurisdiction of and guidance with an emphasis on defining securities by application of the Howey Test.

Department of Justice

In July 2018, Deputy Attorney General Rod J. Rosenstein announced that the President issued an executive order establishing a new Task Force on Market Integrity and Consumer Fraud. This entity encompassed of a number of divisions of the Department of Justice (DOJ), including the FBI and various United States Attorney’s Offices as designated by the Attorney General. The focus of the Task Force is to investigate and prosecute consumer and corporate fraud that targets the public and the government, with a particular emphasis on the elderly, service members and veterans.

The Deputy Attorney General was joined by Securities and Exchange Commission (SEC) Chairman, Jay Clayton, Acting Director, Mick Mulvaney of the Consumer Financial Protection Bureau (CFPB), and Chairman, Joe Simons, of the Federal Trade Commission (FTC) in making the announcement. The executive order directs the DOJ to invite the participation of multiple agencies across the executive branch, including the SEC, CFPB and FTC, as well as the Departments of Defense and Health and Human Services, the Commodity Futures Trading Commission, and many others.  Deputy Attorney General Rosenstein stated that the Task Force will draw on “pooled resources, including subject-matter expertise, data repositories, and analysts and investigators” to “identify and stop fraud on a wider scale than any one agency acting alone.”

In his remarks, Chairman Clayton highlighted the SEC’s actions involving allegedly fraudulent Initial Coin Offerings (ICOs), noting that the SEC has frozen tens of millions of dollars in assets raised in certain ICOs, while working in parallel with federal criminal authorities. Clayton also noted that the SEC is working with other regulators to “provide clarity on the application of our laws and regulations to new and emerging products” such as digital currency.  He concluded,“[C]yber-enabled crime is an area of focus that the SEC shares with many others” on the new Task Force.

The law firm Goodwin Procter LLP has reviewed and analyzed the SEC’s coordination with the DOJ, and other federal and state regulators, as well its guidance regarding certain permissible token sales. They worked to unpick the ‘non-securitisable’ categories for digital assets and work towards an understanding of the SEC’s future regulatory direction after the lack of clarity in the positioning of US regulators over digital assets in 2018.

In Oct. 2018 the SEC and DOJ conducted a new wave of actions against fraudulent crypto companies, including an exchange. While an exchange may be decentralized, the SEC confirmed that the founders remain liable for the exchange according to Forbes, highlighting the the fact that innovation may not necessarily go beyond the current regulatory reach.

FDIC

The Federal Deposit Insurance Corporation (FDIC) is an independent federal agency insuring deposits in U.S. banks and thrifts in the event of bank failures. The FDIC was created in 1933 to maintain public confidence and encourage stability in the financial system through the promotion of sound banking practices.  The Depository Trust & Clearing Corporation (DTCC) issued a white paper March 13th, 2019, aimed at regulators, outlining its seven best practices for trading tokenized assets.

CFTC

The Commodities Futures Trading Commission opens up another regulatory angle for digital assets as it has examined the potential qualification of cryptocurrencies as commodities and ICOs as futures. However, legal questions still remain about jurisdictional reach over cryptos that don’t have futures or derivatives traded on top of them. The CFTC has brought enforcement actions against 8 crypto companies. Aside from regulatory execution, the Commission has been active in promoting education on this new class of technological innovation writing primers on Cryptocurrencies and Smart Contracts in 2017 and November 2018 respectively. In December 2018, the CFTC launched a Request For Information (RFI) to review Ether and get a full understanding of the token with respects to how it compares to Bitcoin. Whereas there was speculation, from Director Hinman’s statement earlier in June that Ether did not qualify as a security, made by crypto traders predicting the emergence of Ether futures, this latest call for review stalled the process.

IRS

The Internal Revenue Service originally issued guidance in 2014, Notice 2014-21, that virtual currencies would be treated as ‘property’ that are subject to both short and long term capital gains for tax purposes. The Crypto community and accountants have been pleading for more specificity. The IRS made two announcements on July 2 regarding cryptocurrency/blockchain. First, the agency announced that it is initiating a new audit campaign targeting tax noncompliance related to digital currency. The IRS encouraged all taxpayers who have unreported virtual currency transactions to correct their returns as soon as possible, but also noted that there are no plans for a specific voluntary disclosure program. In its second announcement, the IRS announced that it is joining an international coalition of tax authorities from countries including Australia, Canada, the Netherlands and the UK, who will work together to investigate crimes and money laundering related to cryptocurrency by sharing information, conducting operations and working together to build capacity. The IRS also indicated that they are continuing to work on future guidance, following the sole release of Notice 2014-21.

FinCEN

The Financial Crimes Enforcement Network has classified crypto as currencies subject to money transmission licensing requirements. In March 2018, the FinCEN stated that money transmitter rules apply to ICOs – another significant regulatory requirement to the industry. Money Transmitter Laws (MTL) are applied for on a state by state basis in the U.S although all companies must also register as Money Service Businesses with FinCEN.

On June 21, 2018, at the 5th Annual Europol Virtual Currency Conference, held at the Hague in the Netherlands. FinCEN’s Jamal El-Hindi reiterated their statement: “We will hold accountable foreign-located money transmitters, including virtual currency exchangers, that do business in the United States when they willfully violate U.S. AML laws.”

Kevin O’Connor of FinCEN also stated that crypto-to-crypto exchanges were subject to AML controls because crypto assets are representative of fiat currency and assets. When questioned about offshore cryptocurrency exchanges and cross-currency swap engines like Shapeshift.io, his response was “if they deal with US customers, they are beholden to US Anti-Money Laundering requirements,” as reported by CipherTrace. See Coindesk article and read OFAC FAQs for more on this.

On May 9th, 2019, providing regulatory certainty for businesses and individuals in expanding fields of financial activity, FinCEN issued Application of FinCEN’s Regulations to Certain Business Models Involving Convertible Virtual Currencies (CVC) to answer questions raised by financial institutions, law enforcement, and regulators concerning regulation of CVC businesses such as exchanges.

The same day FinCEN issued an Advisory on Illicit Activity Involving Convertible Virtual Currency to assist financial institutions in identifying and reporting suspicious activity related to criminal exploitation of CVCs for money laundering, sanctions evasion, and other illicit financing purposes.

OFAC:

A CipherTrace Report on Anti Money Laundering regulations for cryptocurrencies published in 2018 outlined OFAC’s principal involvement in the tracking of addresses and transactions of digital assets:

“The Office of Foreign Assets Control (OFAC) publishes a list of individuals, companies, addresses, bank accounts and countries with which US companies are not permitted to do business. OFAC is going to add cryptocurrency addresses to this list. FinCEN has stated that exchanges must know their counterparties, which countries they are in, and if they are on the OFAC blacklist. This opens up a large set of questions, best practices and technology requirements for identifying counterparties of cryptocurrency transactions.”

In November 2018, OFAC issued sanctions for the first time, identifying associated cryptocurrency IP addresses.

CFPB Now named Bureau of Consumer Financial Protection (March 2018) BCFP:

Mick Mulvaney, the acting director of the Consumer Financial Protection Bureau has shown support for cryptocurrencies and has been a Blockchain technology advocate, having co-founded the Congressional Blockchain Caucus. However the agency itself has refrained from public comment on the digital assets environment and subsequently received significant amounts of complaints from customers of the large exchange, CoinBase.

From a pure technology perspective, Chairman Mulvaney announced the ability of blockchain to use their ‘sandbox’. In a press release, on July 18, 2018, Mulvaney announced Paul Watkins as the head of the newly formed office of innovation coinciding with the regulatory sandbox intended to spur novelty in the burgeoning fintech field. The CFPB , working in collaboration with 11 financial regulators and related organizations, is announcing an initiative to create the Global Financial Innovation Network (GFIN) as a “new framework for cooperation between financial services regulators on innovation-related topics.”

US Department of the Treasury:  Issued a FinTech Report in July 2018 including recommendations relevant to inter-agency coordination, uniform state laws and passporting, digital identity, payments and digital wallets, e-notary and sandboxes.

On May 2nd, 2019, the US Department of the Treasury issued a downloadable PDF framework on the components of a sanctions compliance program including cryptocurrencies. The document outlines how the Office of foreign Assets Control OFAC may incorporate these components into its evaluation of apparent violations and resolution of investigations resulting in settlements.

Homeland Security: Science and Technology, Customs and Border Patrol closely examine blockchain for “effective application” in supply chain and procurement.

Federal Reserve:

The Central Bank does not appear to be developing a digital currency, but Gov Brainard recognizes the monetary policy implications with cryptocurrencies being a new type of asset.

On July 18th 2018, Jerome Powell, Chairman of the Board of Governors of the Federal Reserve System (the U.S. central bank), said ,”cryptocurrencies are great if you’re trying to hide money.” This comment was part of the Fed Chair’s testimony before the Financial Service Committee of the U.S. House of Representatives (“The House”), after he was asked a question by U.S. congressman Patrick McHenry.

McHenry, the Republican representative for North Carolina’s 10th congressional district, and more importantly, the Vice Chairman of the House Financial Services Committee, asked Powell the following question: “Can you outline to me your thinking on cryptocurrency?”

Powell replied:

“… I think the question I was asked that you are referring to was ‘Do cryptocurrencies currently present a serious financial stability threat?’, and my answer was ‘They are not big enough to do that yet.’ That’s what I was saying, not that they are not a longer term thing… They are very challenging because, you know, cryptocurrencies are great if you’re trying to hide money or if you’re trying to launder money… So we have to be very conscious of that. There are also significant investor risks. Investors, relatively unsophisticated investors, see the asset going up in price, and they think ‘This is great! I will buy this.’… In fact, there is no promise behind that. It’s not really a currency… It doesn’t have any intrinsic value. So, I think there are investor and consumer protection issues as well. Another thing I’ll say is that we are not looking at this at the Fed as something that we should be doing, that the Fed would do a digital currency. That’s not something we are looking at. So, mainly, I have concerns. I mean, if you think about what currencies do, they’re supposed to be a means of payment and a store of value, basically, and cryptocurrencies are not really used very much in payment. Typically, people sell their cryptocurrencies, and then pay in dollars… In terms of a store of value, look at the volatility, and it’s just not there.”

It is interesting to note that Powell’s negative view of cryptocurrencies does not seem to have changed much (if any) since November 28th, 2017. At his confirmation hearing for the central bank’s top job, Powell made the following remarks to the Senate Banking Committee:

“They don’t really matter today; they’re just not big enough. There isn’t close enough volume to matter… in the long, long run, cryptocurrencies and things of that nature could matter.”

In contrast, other divisions of the Federal Reserve system are taking more open stances. The St. Louis Fed has included an index of crypto currencies in its data feed which is a significant source of data used by the Federal Reserve system.

Furthermore, multiple other government agencies have been experimenting with blockchain projects which have been tracked by the General Service Administration (GSA) through its repository.

The United States Agency for International Development (USAID) published a report on the potential of blockchain technology and its ability to bring further efficiency to managing data and relationships. The USAID Primer on Blockchain, published April 2018, equips USAID staff, implementing partners, and others to better understand if and how distributed ledger technology-based applications and/or digital currency (e.g. a cryptocurrency like Bitcoin) could help address development challenges—whether in health, agriculture, governance, finance, trade, humanitarian assistance, or energy.

Financial Associations

Non-USG Financial Associations:

Futures Industry Association – FIA focuses on the making of markets for this new asset class through analyses of crypto exchanges, and the custodial perspective. Chairman Giancarlo, however, expressed the organisation’s disapproval of the announcement of bitcoin futures in December 2017 by the CFTC.

NASAA – The North American Securities Administrators Association focuses on targeting suspicious ICOs and unregistered securities offerings. It instigated Operation Cryptosweep in May 2018 to pursue enforcement actions against ICO scams.  It identified Initial Coin Offerings (ICOs) and cryptocurrency-related investment products as emerging investor threats for 2018.

Unlike an Initial Public Offering (IPO) when a company sells stocks in order to raise capital, an ICO sells “tokens” in order to fund a project, usually related to the blockchain. The token likely has no value at the time of purchase. Some tokens constitute, or may be exchangeable for, a new cryptocurrency to be launched by the project, while others entitle investors to a discount, or early rights to a product or service proposed to be offered by the project. NASAA created a short animated video to help investors understand the risks associated with ICOs and cryptocurrencies, in a similar effort to the SEC’s HoweyCoins.com. NASAA and its members first alerted investors of the risks associated with cryptocurrencies back in 2014.

FINRA – The Financial Industry Regulatory Authority has taken a greater interest in crypto/ICOs and has also issued consumer warnings about cryptocurrency scams, along with consumer tools to help detect fraudulent behavior such as FINRA BrokerCheck®. FINRA, the self-regulatory organization covering most participants in the US financial markets, asked its members on July 6th 2018 to promptly notify it if they are involved or plan to become involved in any activities related to digital assets in its regulatory notice. The request is part of the organization’s ongoing efforts to monitor developments in the digital asset marketplace and ascertain the extent of its members’ involvement. FINRA also reminded its members to consider all applicable laws when engaging in these activities.

In October 2018, FINRA along with the SEC announced three new enforcement actions addressing digital asset practices confirming that compliance with broker-dealer laws and regulations is required. The law firm Perkins Cole LLP highlighted these: “as noteworthy developments […]in the regulation of digital assets even though they did not provide clarity on whether any given digital asset is a security. The actions demonstrated the regulators’ willingness to enforce securities laws against various types of actors involved in the buying and selling of digital assets. Private fund managers and private funds that invest in digital assets may face consequences for failing to comply with registration requirements.”

SIAA   The Strategic Insurance Agency Alliance dedicated to the creation, retention and growth of the independent insurance agency distribution system itself released a general Blockchain Overview and Policy Considerations for its audience in December 2017.

US Congress

The Congressional Blockchain Caucus of 18 members of Congress, led by Congressman Jared Polis (D-CO) and David Schweikert (R-AZ), Tom Emmer (R-MN) and Bill Foster (D-IL), was launched in 2017 to focus on government application of the technology and its potential effect on data ownership and health care.

Congress initially led an educational campaign on this new technology. It hosted its first Congressional Blockchain Education Day, in July 2017, with the Chamber of Digital Commerce which was later followed by the Congressional Research Service issuing a report on Blockchain technology’s background and policy issues in February 2018.

Following this, members of Congress led a variety of outreach initiatives to gather further information on this nascent industry and support the proliferation of innovation from it. Congressman Davidson hosted Major Roundtable to Protect Consumers from Fraud, Address Urgency to Regulate ICO Market in October 2018.  Davidson said he wants to preempt any type of heavy-handed regulatory approach that could stall innovation and kill the U.S. ICO market, as he claimed the lack of regulatory certainty would drive innovation outside the U.S. Separately, Congressmen Emmer and Foster participated in the US Chamber of Commerce FinTech conference on November 27, 2018 where they appealed to start-ups to visit with the Caucus for knowledge sharing on the particular legal and regulatory issues facing them where Congress could be of assistance.  A Congressional bill – Token Taxonomy – is on the table for discussion in 2019.  This bill introduced by Reps. Warren Davidson and Darren Soto, seeks to exclude “digital tokens” from being defined as securities, and is aimed at amending the Securities Acts of 1933 and 1934.

Key Hearings:

• Nov 2013 – Hearing on threats, promise of virtual currencies. Senate HSGAC committee.
• March 2016 – Hearing on Digital Currency and Blockchain Technology; House Energy and Commerce committee.
• June 2017 – Hearing on National Security Implications of Virtual Currency Innovation, by House Financial Services Committee.
• Feb 2018 – Hearing on Virtual Currency Oversight, by Senate Banking Committee – featuring CFTC chair Chris Giancarlo and SEC Chair Jay Clayton.
• March 2018 – Hearing on ICOs and oversight, March 2018 by House Financial Services Committee.
• May 2018 – Hearing on Blockchain use in Supply Chain, May 2018 by House Science and Technology Committee.
• June 2018 – Senate Judiciary Committee hearing on Use of Virtual Currencies in undermining US elections.
• June 2018 – Hearing on Illicit use of virtual currencies, House FinServices committee.
• July 2018 – Hearing from the “Subcommittee on Monetary Policy and Trade” (called “The Future of Money: Digital Currency”) of the House Financial Services Committee. According to the memorandum, the purpose of the hearing was to “examine the extent to which the United States government should consider cryptocurrencies as money and the potential domestic and global uses for cryptocurrencies”, with the idea being that the Subcommittee would “evaluate the merits of any uses by central banks of cryptocurrencies, and discuss the future of both cryptocurrencies and physical cash.”
• July 2018: Hearing on Cryptocurrencies House Committee on Agriculture.
• August 2018 – Senate Energy & Natural Resources Committee hearing on Energy Efficiency of Blockchain and Similar Technologies.
• Oct 2018 – Hearing on blockchain and cryptocurrency where Roubini stated blockchain was ‘the mother of all scams’. Senate Banking, Housing and Urban Affairs Committee.

As previously mentioned, 15 members of Congress sent a letter to the SEC pushing for clarification on the regulation for crypto assets in September 2018. This was a significant move where government representatives, along with the key industry players and general public, were pushing for the SEC to make a clear decision on the matter.